November 26, 2008

The Honourable Subash Nemwang

Speaker

Constituent Assembly

Singha Durbar

Kathmandu, Nepal

Re: Disappearances Bill

Dear Speaker,

Human Rights Watch and Advocacy Forum welcome the government's efforts in tabling the Disappearances (Crime and Punishment) bill, 2065, to criminalize enforced disappearances and to provide for a high-level independent Commission to investigate disappearances during the 1996-2007 armed conflict.

Enforced disappearances are among the most serious of human rights violations, as they not only violate the most basic rights of the "disappeared" person but are also extremely traumatic for family members and friends of victims. In 2003 and 2004 Nepal had the ignominious distinction of having the highest yearly number of new cases of "disappearances" reported to the United Nations Working Group on Enforced or Involuntary Disappearances in the world. In total, 1,619 "disappearances" (1,234 attributed to the security forces, 331 to the Communist Party of Nepal (Maoist) (CPN-M) and 54 unidentified) were reported to the National Human Rights Commission. Perpetrators of "disappearances" have enjoyed total impunity, as not one member of the government security forces or of the CPN-M has been held criminally accountable and convicted for a case involving enforced disappearance.

Passage of this bill would be an important step towards full and impartial investigations into the thousands of cases of unacknowledged detention, abductions and "disappearances" reported over the period of the recent armed conflict as ordered by the Supreme Court in its landmark judgment of June 2007 (Nepal Kanun Patrika, Jestha 2064 Part 49-2). It is an encouraging step towards ending impunity and bringing perpetrators to justice and to prevent similar violations in the future.

We urge that the bill be rigorously scrutinized and debated in the Constituent Assembly to ensure that it is consistent with the order of the Supreme Court and the International Convention for the Protection of All Persons from Enforced Disappearance (Convention against Enforced Disappearance), particularly those provisions in the convention obligating states parties to address and sanction enforced disappearances. A more detailed analysis of the bill is included in the Appendix to this letter.

The government of Nepal should ensure that the elements of "disappearances" as defined in the bill, in addition to the provisions relating to unacknowledged detention and abductions including by non-state actors, are consistent with those in the definition of enforced disappearance as provided for in the Convention against Enforced Disappearance. The bill should reflect that enforced disappearances constitute a serious and continuing violation of domestic and international law and that, when committed in the context of a widespread or systematic attack directed against the civilian population, it constitutes a crime against humanity. The bill should address both individual cases of enforced disappearances and also the wider practice and policy of enforced disappearances as identified in several authoritative reports, including by the United Nations Working Group on Enforced and Involuntary Disappearances, the Office of the High Commissioner for Human Rights in Nepal, and Human Rights Watch.

We urge you to allow sufficient time for the members of the Constituent Assembly to debate the bill and introduce amendments in the interest of truth, justice and reparation for the victims of enforced disappearances in Nepal.

Finally, as a sign of its commitment to ending the practice of "disappearances," we urge the government to sign the International Convention for the Protection of All Persons from Enforced Disappearance and send it to the Constituent Assembly as soon as possible for ratification.

Thank you for your consideration. We look forward to hearing from you soon.

Yours sincerely,

Brad Adams Mandira Sharma

Executive Director Director

Human Rights Watch Advocacy Forum

Appendix:

Comments on the Disappearances (Crime and Punishment) Bill, 2065

Definitions

The elements of "disappearances" as defined in the bill (Section 2(a)) - in addition to the provisions relating to unacknowledged detention and abductions, including by non-state actors - should be revised to be consistent with the definition of enforced disappearance as provided for in the International Convention for the Protection of All Persons from Enforced Disappearance. Under the convention, an enforced disappearance occurs when a person is deprived of his or her liberty, whether under arrest, detention, or otherwise, by agents of the state or by persons or groups of persons acting with the authorization, support or acquiescence of the state, and this is followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of the person deprived of their liberty. We therefore recommend that in addition to incorporating the crimes of incommunicado detention and abductions, the bill should fully incorporate the elements of the definition of enforced disappearances as set out in the Convention against Enforced Disappearance.
Include in section 3 or 5 of the bill a provision that the prohibition on and criminalization of the act of an enforced disappearance is absolute and that such an act cannot be justified under any circumstances, including during a state of emergency or armed conflict.
Ensure that it is clear in the bill that victims and family members are entitled as a matter of right to know the truth regarding the circumstances of the enforced disappearance.
Incorporate the doctrine of command responsibility in the bill so that officers in command may be held criminally accountable when they knew or should have known that enforced disappearance was being carried out by their subordinates and they failed to prevent the crime or punish those responsible.

Reparations

Amend Section 22 to ensure that victims are entitled to receive reparations as a matter of right. In addition to spelling out different kinds of reparations that can be given to the victims, we recommend that the bill include a provision for a comprehensive reparations policy or guidelines which the government must develop in consultation with stakeholders.
Clarify whether a person is eligible for both compensation and reparations. Link the clause on reparations for enforced disappearances to the provision of reparations in the draft Truth and Reconciliation Commission bill to ensure equitable treatment and non-discrimination of all victims in the allocation and distribution of relief and other reparation measures.
In Section 2(b), the definition of victims does not include dependents and should be redefined to refer to a wider category of all those directly affected by the crime.
In cases in which the Commission has concluded that a "disappeared" person was last seen in the custody of state agents and the remains of the person have not been recovered, the Commission should have the powers to issue letters allowing relatives of the disappeared to obtain death certificates.

Penalty

Section 6 of the bill should be revised to remove the maximum of five years of imprisonment and a fine for carrying out an enforced disappearance. This is far too lenient a punishment for cases that often involve kidnapping, torture, and murder. Instead, the sentences should reflect the gravity of the crime of enforced disappearances. This is particularly so where someone is responsible for authorizing a practice or policy of enforced disappearance.

Formation and powers of the Commission

Section 10: The committee which recommends the appointment of members and the chairperson should also include a member from the parliamentary opposition, civil society and victims' representatives to ensure the committee is as inclusive as possible. It is vital that this process is made transparent and inclusive by publicly calling for nominations.
Section 15: The mandate of the Commission should be clarified to ensure the Commission can refer cases to the Attorney General for investigation and prosecution in civilian courts. It should also specify that no cases involving civilian victims should be referred to military courts.
Section 17 and 18: The functioning of the Commission needs to be elaborated to ensure the Commission has subpoena powers and powers equivalent to contempt of court in the event that a person refuses to cooperate and to seek documents from government agencies and institutions, such as the National Human Rights Commission, when needed.
Section 19: The bill needs to provide more clearly for effective victim and witness protection schemes. Although the draft bill says that the Commission can ask the Nepal government for assistance with regards to security concerns of individual witnesses, it would be more useful if specific mechanisms for providing security can be made available to the Commission. The government should be required to provide such assistance as requested by the Commission.
Section 25: This clause empowers the Attorney General to decide on individual prosecutions based on the Commission's report. To ensure that these cases are given the priority they deserve and that adequate resources are made available, we recommend that the bill includes provision for a special prosecution unit to be set up within the Attorney General's office to prosecute cases referred by the Commission. The Attorney General should be required to report back to the Commission in writing within a specified period of time the reasons why it decides not to prosecute a particular case.
Section 26: The provision requiring filing of complaints within six months of the enactment of the bill needs to be dropped. There should be no time limit. It could take several months for the Commission to become operational. It may take longer for victim and witness protection plans to be operational and effective. It is likely to take even longer for trust to be established with the public so that victims and their families feel confident that making a complaint is both useful and safe. Not having a time limit is consistent with the Convention against Enforced Disappearance, which defines enforced disappearances as a continuing violation as long as the case has not been clarified.
The bill should include a provision to ensure implementation and action is taken by state authorities on recommendations of the Commission, especially those relating to prosecutions. Written and adequate answers within a specified time period should be provided where action is not taken.
The Commission should be given the powers to order exhumations and obtain necessary outside expertise.

Investigations and prosecutions

Revise Section 6(4) of the bill to ensure that, while cooperation with an investigation may be a mitigating factor in sentencing, no one and no class or group of persons involved in one or more enforced disappearance can enjoy immunity for their actions.
All interim reports and the final report by the Commission should be made public and disseminated widely. The Commission should take care to keep confidential any information regarding victims and witnesses, so as to ensure their safety.